SANDEEP BULK CARRIERS Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri M.K. Pandey, learned counsel for the petitioner, Sri Ashok Pandey, learned Additional Advocate General assisted by Sri B.K. Pandey, learned counsel for the Respondent Nos. 1 to 4 and Sri Jyont Banerjee, learned counsel for the Respondent No.5.

(2.) This writ petition has been filed praying for the following reliefs:

(3.) Briefly stated the facts of the present case are that the petitioner is a transporter as well as owner of a tanker No. UP85V9636. Bitumen was loaded in the aforesaid tanker from the Indian Oil Corporation, Mathura Refinery in the evening of 27th June, 2014 for transportation to M/s Concast Infratech Ltd. Bhopal (Madhya Pradesh). Thereafter some mechanical defect developed in the tanker which was repaired in the Chaudhari Works Shop, Delhi bypass Road, Chaudhari Market, Mathura between 28.6.2014 to 30.6.2014, as per copies of bills collectively filed as Annexure No.1. Thereafter the tanker proceeded in the night of 30.6.2014. The aforesaid tanker was intercepted near Farah by the Assistant Commissioner, Commercial Tax, Shift III Mobile Squad, Mathura and after about two hours a detention memo was issued on Ist July, 2014 at about 1 A.M. The tanker was detained by the said authority even though the bitumen loaded in it was found accompanied with all proper and genuine documents including Invoice of selling dealer M/s Indian Oil Corporation, Mathura, bilti and declaration Form 49 of the Madhya Pradesh Government issued by the purchasing dealer M/s Concast Infratech Ltd. Bhopal, Madhya Pradesh. The petitioner submitted an objection on 2.7.2014 before the aforesaid authority bringing to his notice the facts that certain defect developed in the tanker on 28.6.2016 and it could be repaired on 30th June, 2014. An affidavit of the driver of the tanker to the aforesaid effect was also filed, a copy of which has been filed as Annexure No.5. A show cause notice dated 2.7.2014 was issued by the Respondent No.4 which was replied by the petitioner on 4th July, 2014 (Annexure 8) in which he explained the matter, denied the entry of his tanker at Mahuwan Toll Plaza, requested to verify the alleged information of the Toll Plaza and demanded Compensation of Rs. 5,000/- per day for illegal detention of his tanker. However, the respondent No.4 passed seizure order dated 5th July, 2014 on the ground that between 28th June, 2014 to 30th June, 2014 the aforesaid tanker crossed the toll plaza on 28.6.2014 while going from Mathura to Agra and on 29.6.2014 while returning from Agra to Mathura and, as such, it is evident that under the garb of the papers accompanied with the tanker, bitumen in question was being illegally transported. He seized the goods by order dated 5.7.2014 under Section 48 of the U.P. VAT Act (hereinafter referred to as the 'Act') and demanded cash security of Rs. 4,80,000/- for release of the goods. Aggrieved with this order the petitioner moved an application under the proviso to Section 48 (7) of the Act before the Joint Commissioner, Commercial Tax (SIB) and Mobile Squad, Mathura dated 7.7.2014 giving complete details and annexing documentary evidences. It was specifically stated in the application by the petitioner that the information with the department from the toll plaza relates to merely last four digits of the registration number of some vehicle on the basis of which it cannot be said that the petitioner's tanker crossed the toll plaza or the information received by the department relates to the tanker of the petitioner. He stated that in "UP85" series there are twenty two vehicles registered in the office of the R.T.O. Mathura of which last four digits is "9636". However, the respondent No.2 rejected the application of the petitioners vide order dated 8th July, 2014 after recording a finding that vehicle No. 9636 is entered in the records of the toll plaza. On the aforesaid basis he drawn inference that the tanker in question down loaded bitumen at some place and thereafter it came back and again loaded bitumen which was being illegally transported under the cover of the papers of earlier transaction with an intent to evade payment of tax. The respondent No.2 did not verify the complete number of the vehicle with reference to the information received. Aggrieved with the aforesaid order, the petitioner preferred Second Appeal No. 223 of 2014 before the Member, Commercial Tax Tribunal Bench-I, Agra which was dismissed by the impugned order dated 16th July, 2014. Aggrieved with these orders the petitioner has filed the present writ petition for the relief as quoted above.